Citation Nr: 1410382
Decision Date: 03/12/14 Archive Date: 03/20/14
DOCKET NO. 05-24 315 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona
THE ISSUES
1. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability.
2. Entitlement to an initial rating in excess of 10 percent prior to January 17, 2006, and in excess of 20 percent from January 17, 2006, for residuals of shell fragment wounds to the right knee.
3. Entitlement to an initial rating in excess of 30 percent for injury to Muscle Group XVIII of the right knee.
4. Entitlement to an initial rating in excess of 10 percent for residuals of shell fragment wounds to the right leg.
5. Entitlement to an initial rating in excess of 10 percent for residuals of shell fragment wounds to the right thigh.
6. Entitlement to an initial rating in excess of 10 percent for residuals of shell fragment wounds to the left leg.
7. Entitlement to an initial rating in excess of 10 percent for residuals of shell fragment wounds to the left hip.
8. Entitlement to an initial rating in excess of 40 percent for injury to Muscle Group XVI of the left hip.
9. Entitlement to an initial compensable rating for residuals of shell fragment wounds to the left buttocks.
REPRESENTATION
Veteran represented by: Arizona Department of Veterans Services
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
S. Becker, Counsel
INTRODUCTION
The Veteran served on active duty from November 1967 to December 1969. Among the decorations awarded to him for this service were the Purple Heart and the Combat Action Ribbon. The current matter comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Service connection for hypertension was denied therein. Service connection for residuals of shell fragment wounds to the right knee, right leg, left leg, left hip, and left buttocks was granted. An initial 10 percent rating was assigned with respect to the right knee effective February 6, 2004, and zero percent initial ratings otherwise were assigned effective as of this date. The Veteran disagreed with the denial of service connection and these ratings.
In a July 2005 rating decision, the RO found clear and unmistakable error in a September 1972 rating decision which granted service connection for residuals shell fragment wounds both legs and left buttocks and assigned an initial zero percent rating. Separate initial ratings of 10 percent were assigned for the right knee, right leg, left leg, left hip, as well as the right thigh effective April 24, 1972. The period on appeal thus goes back to this date. The right thigh is on appeal because it is part of the right leg and because the Veteran disagreed with the rating for it.
The initial rating for the right knee was increased to 20 percent effective January 17, 2006, in a May 2006 rating decision. In September 2006, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge. The Board remanded for additional development in February 2008. In a December 2010 rating decision, the Appeals Management Center (AMC) increased the initial ratings for the right knee and left hip to 30 percent effective August 20, 2010.
Following the Board's remand for further development in March 2011, the AMC granted service connection for an injury to Muscle Group XVIII of the right knee and to Muscle Group XVI of the left hip in a September 2012 rating action. Initial ratings of 30 and 40 percent were assigned effective August 20, 2010. They took the place of those assigned in the December 2010 rating decision for residuals of shell fragment wounds to the right knee and left hip. Yet, service connection for these residuals was not severed. As such, the Veteran has two service-connected disabilities of the right knee and left hip. The Muscle Group injury ratings are on appeal because, while he did not expressly disagree with them, such is implicit in that he seeks increased ratings for his disabilities however diagnosed.
The Board once again remanded for additional development in January 2013. No reason is found to delay adjudication further. The determinations made herein are made based on review of the Veteran's paper and electronic claims files. All issues comprising this matter are addressed because they all remain on appeal. To the extent increased initial ratings already have been granted, they indeed did not cover the entire period on appeal and/or were not to the maximum rating possible. AB v. Brown, 6 Vet. App. 35 (1993). The grant was only partial, in other words.
FINDINGS OF FACT
1. The Veteran's hypertension did not arise within his first post-service year, has not been linked to herbicide exposure, and is not related to his service or in any manner to a service-connected disability.
2. The Veteran's right knee and right thigh residuals of shell fragment wounds, though each only moderate alone, together are moderately severe. Rating on this basis is more favorable than rating based on limitation of motion or otherwise for the right knee.
3. The Veteran's injury to Muscle Group XVIII of the right knee has the maximum schedular rating allowable, and there is no basis for extraschedular consideration.
4. The Veteran's residuals of shell fragment wounds to the right leg are not moderately severe.
5. The Veteran's residuals of shell fragment wounds to the left leg are not moderately severe.
6. The Veteran's left hip and left buttocks residuals of shell fragment wounds, though only moderate and slight respectively, together are moderately severe. Rating on this basis is more favorable than separate ratings based on limitation of motion or otherwise for the left hip for the period prior to July 13, 2009, but this alternative is more favorable from this date. In this regard, left hip flexion is limited to a maximum of 25 degrees, extension is limited to five degrees, and abduction beyond 10 degrees is lost.
7. The Veteran's injury to Muscle Group XVI of the left hip has the maximum schedular rating allowable, and there is no basis for extraschedular consideration.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for hypertension, on direct and secondary bases, have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1111, 1112, 1113, 1116, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 4.104, Diagnostic Code 7101 (2013).
2. The criteria for entitlement to an initial rating of 30 percent, but no higher, for residuals of shell fragment wounds to the right knee and right thigh together have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.27, 4.55, 4.56, 4.68, 4.73, Diagnostic Code 5314 (2013); 38 C.F.R. §§ 4.54, 4.55, 4.56 (1997).
3. The criteria for entitlement to an initial rating in excess of 30 percent for injury to Muscle Group XVIII of the right knee have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.55, 4.59, 4.56, 4.68, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5261-5262, 4.73, Diagnostic Code 5318 (2013).
4. The criteria for entitlement to an initial rating in excess of 10 percent for residuals of shell fragment wounds to the right leg have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.55, 4.56, 4.68, 4.73, Diagnostic Code 5312 (2013); 38 C.F.R. §§ 4.54, 4.55, 4.56 (1997).
5. The criteria for entitlement to an initial rating in excess of 10 percent for residuals of shell fragment wounds to the left leg have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.55, 4.56, 4.68, 4.73, Diagnostic Code 5312 (2013); 38 C.F.R. §§ 4.54, 4.55, 4.56 (1997).
6. The criteria for entitlement to an initial rating of 20 percent, but no higher, for the period prior to July 13, 2009, for residuals of shell fragment wounds to the left hip and left buttocks together have been met. The criteria for entitlement to separate initial ratings of 20 percent, 20 percent, and 10 percent, for a combined total of 40 percent, but no higher, for the left hip have been met for the period from July 13, 2009. 38 U.S.C.A. § 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.27, 4.40, 4.45, 4.55, 4.56, 4.59, 4.68, 4.71, 4.71a, Diagnostic Codes 5252-5254, 4.73, Diagnostic Codes 5317-5318 (2013); 38 C.F.R. §§ 4.54, 4.55, 4.56 (1997); 38 C.F.R. §§ 4.118, Diagnostic Codes 7803-7805 (2001); 38 C.F.R. §§ 4.118, Diagnostic Codes 7801-7805 (2007).
7. The criteria for entitlement to an initial rating in excess of 40 percent for injury to Muscle Group XVI of the left hip have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.55, 4.56, 4.68, 4.73, Diagnostic Code 5316 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
Before addressing the merits, VA has a duty of notification regarding a claim for VA benefits. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. Notice must be provided prior to the initial adjudication of the evidence necessary to substantiate the benefit sought, that VA will seek to obtain, and that the claimant should provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). For increased rating claims, generic rather than specific notice about substantiating the claim is required. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Notification of how ratings and effective dates are assigned also must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Neither the Veteran nor his representative has alleged notice prejudice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). May and October 2004 letters informed him and his representative at the time of the criteria for establishing service connection, the evidence needed to do so, and his and VA's duties for obtaining evidence. The first was prior to initial adjudication in the August 2004 rating decision. A February 2006 letter repeated the aforementioned. It also informed the Veteran and his representative of the criteria for establishing an increased rating and the evidence needed to do so. To the extent this notice should have been provided before the August 2004 rating decision, readjudication in a September 2006 supplemental statement of the case (SSOC) corrected this timing error. Mayfield, 444 F.3d at 1328; Prickett v. Nicholson, 20 Vet. App. 370 (2006).
The Veteran was informed of how ratings and effective dates are assigned via a March 2006 letter. This was after the August 2004 rating decision but immediately following caselaw first requiring such notification. There is no error in these circumstances as long as there was subsequent adjudication following the notice. Pelegrini, 18 Vet. App. at 112. Such occurred in several subsequent SSOCs, the first of which was the September 2006 SSOC. A February 2008 letter to the Veteran and his representative, which was sent in compliance with the Board's February 2008 remand, repeated all of the aforementioned. A December 2010 SSOC repeated how ratings and effective dates are assigned.
As directed in the Board's January 2013 remand, the Veteran and his representative were informed via a December 2013 SSOC of most of the changes in the criteria for establishing an increased rating for the residuals of shell fragment wounds. The changes to 38 C.F.R. §§ 4.73 and 4.118 were noted, but the changes to 38 C.F.R. §§ 4.55 and 4.56 were omitted. Yet substantial compliance, as opposed to strict compliance, is all that is required. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The changes to 38 C.F.R. §§ 4.55 and 4.56 were not significantly substantial. Further, the current version of the latter regulation was set forth in the July 2005 statement of the case.
In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This includes, as implied from the notification that must be provided, a requirement to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Service treatment records have been procured. They do not relate to reserve service with one exception. Efforts were made, pursuant to the Board's February 2008 remand, to obtain such records. However, they were unsuccessful. The service treatment records also do not relate to the Veteran's month long hospitalization during service. Indeed, they typically do not include clinicals. VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iii, Chapter 2, Section A.1.a. Efforts have not been made to obtain the Veteran's clinicals. However, the hospitalization is summarized in the service treatment records. A remand to undertake these efforts accordingly is to be avoided as it would impose an additional burden on VA without benefitting the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); Soyini v. Derwinski, 1 Vet. App. 540 (1991).
Service personnel records and VA treatment records have been procured. Some of the VA treatment records were procured as directed in the Board's February 2008 remand. Private treatment records from the only facility identified by the Veteran were procured after he authorized their release. He submitted an additional private treatment record on his own behalf. Although the aforementioned February 2008 letter requested that he provide identifying information and authorization for employment physical records, he did not respond. He thus failed to meet his duty to cooperate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991).
In June 2004, March 2006, January 2007, July 2009, December 2009, August 2010, October 2010, March 2011, and July 2012, the Veteran underwent VA medical examinations. Those in 2009 and 2010 were triggered by the Board's February 2008 remand, while those in 2011 and 2012 were triggered by the Board's March 2011 remand. To the extent any claims file was not reviewed, every examiner was aware of the Veteran's medical history because he recounted it. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008). Of further note is that the electronic claims files do not contain any substantive documents that are not also in the paper claims file. The Veteran also was interviewed about his symptoms and physically assessed.
Each aforementioned examination concerning hypertension contained a nexus opinion. Pursuant to the Board's January 2013 remand, additional VA medical opinions in this regard were obtained in February, August, October, and December 2013. A retrospective VA medical opinion about residuals of shell fragment wounds also was obtained in September 2013. The examinations and opinions together have provided sufficient detail so that the determinations made herein are fully informed. As such, the examinations and opinions collectively are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007).
It is significant that neither the Veteran nor his representative has identified any other development believed to be necessary which has not been completed. The record also does not indicate any such development. The Board accordingly finds that no further notice or assistance action is required. VA's duties to notify and to assist have been satisfied, in other words. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183. Therefore, adjudication may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993).
Finally, a hearing must include a full explanation of the issues on appeal and the suggestion that any overlooked favorable evidence should be submitted. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The undersigned began the September 2006 hearing by stating the issues comprising this matter as they were characterized at that time. Information then was elicited from the Veteran, with the aid of his representative, concerning what he believes caused his hypertension and the state of his right knee, right leg, right thigh, left leg, left hip, and left buttocks. Information also was elicited concerning his treatment in this regard. He denied going anywhere but VA. Upon mentioning employment physicals, the undersigned indicated wanting to make sure records were available. It is reiterated that the Veteran unfortunately did not cooperate for this to happen.
II. Service Connection
Service connection means that an injury or disease resulting in disability was incurred or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, there must be a current disability, incurrence or aggravation of an injury or disease during service, and a nexus between them. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection also may be established for any disease diagnosed after service if it was incurred during service. 38 C.F.R. § 3.303(d).
As it is a symptom long preceding the development of cardiovascular-renal disease, hypertension is a chronic disease. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). Manifestation of the same chronic disease during service and at any later date may be service connected unless clearly attributable to an intercurrent cause. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology after service is required if the disease was noted but not chronic during service or where the determination that it was chronic is questionable. Id.; Savage v. Gober, 10 Vet. App. 488 (1997).
There is a rebuttable presumption of service connection for chronic diseases and diseases associated with exposure to an herbicide agent. 38 U.S.C.A. §§ 1112, 1113, 1153; 38 C.F.R. §§ 3.307, 3.309. Service must have been active duty for 90 days or more during a war period or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). With respect to diseases associated with herbicide exposure, exposure during service obviously is required. It is presumed if there was service in the Republic of Vietnam (RVN) between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West, 12 Vet. App. 164 (1999).
Lastly, the chronic disease or disease associated with exposure to an herbicide agent must be manifested to a compensable degree within a particular time period. Manifestation does not mean that there must be a diagnosis within this period but that there must be characteristic symptoms followed by diagnosis without unreasonable delay. 38 C.F.R. § 3.307(c). For hypertension as a chronic disease, this period is within one year from the date of separation from service. 38 U.S.C.A. § 1112(a)(1) 38 C.F.R. §§ 3.307(a)(2-3), (c). For ischemic heart disease, which has been associated with herbicide exposure, this period is any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Ischemic heart disease does not include hypertension. 38 C.F.R. § 3.309(e), Note 3.
Secondary service connection means that a current nonservice-connected disability was incurred because of or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Aggravation means a permanent worsening beyond natural progression. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The baseline level of disability pre-aggravation must be compared to the current level of disability. 38 C.F.R. § 3.310(b). Compensation is paid only for the degree of disability attributable to aggravation. Id.; Allen, 7 Vet. App. at 439. Here, the Veteran is service-connected for the shell fragment wounds and Muscle Group disabilities listed above as well as for scars related thereto, diabetes mellitus (DM), posttraumatic stress disorder (PTSD), tinnitus, bilateral hearing loss, and headaches.
All the evidence must be reviewed, but only the most salient must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive and unpersuasive evidence must be identified, and reasons must be provided for rejecting evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay evidence may be discounted in light of inherent characteristics or the other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant is afforded the benefit of the doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.
To be current, a disability must be present near or at the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed the instant claim in February 2004. Beginning prior thereto in August 2002, private treatment records contain a diagnosis of hypertension. VA treatment records first contain this diagnosis contemporaneous with the instant claim. It further was made upon VA medical examination in July 2009, March 2011, and July 2012. In sum, the Veteran has hypertension which qualifies as a current disability.
The Veteran served more than 90 days after December 31, 1946, during a period of war. His service indeed spanned a little over two years. All was during the Vietnam era. 38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2(f). Service personnel records document that the Veteran was stationed in the RVN. He thus presumably had herbicide exposure during service. Service connection nevertheless cannot be presumed for hypertension. Ischemic heart disease has been associated with herbicide exposure, but it does not include hypertension. It indeed has been determined that there is no association between hypertension and herbicide exposure at least as of this time. Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 (Aug. 10, 2012).
No diagnosis earlier than the aforementioned August 2002 diagnosis of hypertension exists. As such, no diagnosis was made within the first year after service. Manifestation within this timeframe further is not established. Elevated blood pressure, which is composed of systolic pressure over diastolic pressure, is the hallmark symptom of hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101. VA treatment records dated between the Veteran's December 1969 discharge and December 1970 do not reflect that his blood pressure was elevated. No private treatment records from then are available. The Veteran has not recounted having had elevated blood pressure between his December 1969 discharge and December 1970. Even if he had, there is no indication that a diagnosis was made until over two decades later.
Since it cannot be presumed, service connection must be established. A Veteran is presumed to be in sound condition when he begins service except for any defects noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Noted means only defects that are recorded in an examination report. 38 C.F.R. § 3.304(b). Service treatment records do not reflect that hypertension was noted upon the Veteran's November 1967 entrance examination. The presumption of soundness therefore applies. At issue is whether or not the Veteran incurred, as opposed to aggravated, an injury or disease leading to hypertension during service.
Service treatment records are silent with respect to hypertension. There further is no indication that the Veteran's blood pressure was being monitored regularly due to elevated readings. His blood pressure was 124/76 at his entrance examination, 119/78 in October 1968, 130/80 in January 1969, and 134/75 at his November 1969 separation examination. Though some of these readings are higher than others and may be higher than desired, none was characterized as elevated. This lack of manifestation or even notation of any elevated blood pressure or hypertension during service rules out chronicity and continuity of symptomatology. An in-service injury or disease leading to hypertension, in sum, does not exist.
Even though service connection cannot be presumed as due to herbicide exposure, it still may be established on this basis. Brock v. Brown, 10 Vet. App. 155 (1997); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran does not contend that his hypertension is due to such exposure during service, however. Instead, he contends that it is due to his service in general or to his service-connected disabilities. He is a lay person because there is no indication that he has a medical background. Lay evidence sometimes can establish nexus. Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
Yet, the question of nexus here is medical in nature given the complexities involved. These include the fact that over 44 years that have passed since the Veteran was discharged from service and the intricate and nuanced interplay between hypertension and his service-connected disabilities. Only those with a medical background are competent to answer a medical question. Jones v. West, 12 Vet. App. 460 (1999). Nexus therefore is outside the Veteran's competency. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1372. As such, he is not persuasive. Yet several medical professionals who may be persuasive have addressed nexus.
The physician who conducted the July 2009 VA medical examination opined that the Veteran's hypertension was not caused by or a result of his service. It was explained that hypertension was diagnosed decades after service. The staff physician who conducted the March 2011 VA medical examination opined that the Veteran's hypertension is not caused by his DM. It was explained that hypertension preceded DM and that, although hypertension is a significant risk factor for DM complications, the general perception is not that DM causes it. The same staff physician conducted the July 2012 VA medical examination and opined that the Veteran's hypertension was less likely than not caused by his service-connected disabilities. It was explained that the onset of hypertension was independent of these disabilities and that none of them can be construed as causing hypertension.
In February 2013, this staff physician provided the same opinion for all service-connected disabilities except PTSD. It additionally was opined that the Veteran's hypertension is less likely than not aggravated by these disabilities. The explanation was that hypertension preceded DM and occurred well after the in-service injuries. In August 2013, the same physician as in July 2009 opined that the Veteran is not entitled to service connection for hypertension as secondary to a service-connected disability. No explanation was given. A clinical psychologist indicated in October 2013 that an opinion was outside the scope of a mental health practitioner because all the Veteran's service-connected disabilities except PTSD were physical. However, a staff psychiatrist opined in December 2013 that the Veteran's hypertension is not caused by his PTSD. It was explained that there are no reports specifying a causal connection between them and that they are considered to be separate disabilities.
Many factors are used to assess medical opinions. They include the opiner's qualifications and review of the evidence, the scope of the examination, the rationale offered for it, the accuracy of any factual premises underlying it, and the degree of certainty in it. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Ardison v. Brown, 6 Vet. App. 405 (1994); Reonal v. Brown, 5 Vet. App. 458 (1993). The aforementioned staff physicians, clinical psychologist, and staff psychiatrist are all trained professionals. They accordingly are presumed to be qualified absent a challenge in this regard. Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Cox v. Nicholson, 20 Vet. App. 563 (2007). None has been made here. The paper claims file was reviewed by each of the aforementioned.
While the two staff physicians examined the Veteran, the clinical psychologist and staff psychiatrist did not. Their review of the paper claims file included review of the staff physicians' examinations, however. No indication exists that they were not thorough. As set forth above, the clinical psychologist did not actually render an opinion in October 2013. A rationale was provided for each opinion rendered other than the July 2012 opinion, as noted in the Board's January 2013 remand, and the August 2013 opinion. They accordingly are not persuasive. Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 120. All factual premises underlying the remaining July 2009, March 2011, February 2013, and December 2013 opinions, all of which were provided with certainty, are accurate. The Veteran's hypertension was diagnosed decades after his service, and therefore his injuries sustained therein, but before his DM diagnosis which VA treatment records reflect was in 2005 or 2006. Otherwise, the current state of medical knowledge was noted.
The July 2009, March 2011, February 2013, and December 2013 opinions, in sum, are persuasive. It was made clear in the Board's March 2011 remand that the first of these was not complete. None of the others are complete either. In other words, no opinion addresses whether the Veteran's hypertension is related to his service, is causally related to one or more of his service-connected disabilities, and is related via aggravation to one or more of these disabilities. However, they collectively address each of these aspects of nexus. The July 2009 opinion indeed addresses a relationship to service, the March 2011 opinion addresses a causal relationship to DM, and the February 2013 opinion addresses a causal and aggravation relationship to all service-connected disabilities except PTSD. The December 2013 opinion explicitly addresses a causal relationship to PTSD. In noting that hypertension and PTSD are separate, it also implicitly addresses an aggravation relationship.
Since all of the persuasive opinions are negative, there is no nexus between the Veteran's hypertension and his service or his service-connected disabilities. This includes a causation or aggravation nexus to these disabilities. Lacking this nexus as well as an in-service injury or disease, service connection has not been established. That it also cannot be presumed is reiterated. Both of these conclusions, as well as the findings that led to them, are made based on the preponderance of the evidence. As such, there is no benefit of the doubt to afford to the Veteran. He is not entitled to service connection for his hypertension.
III. Increased Ratings
A. Schedular
Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the rating criteria for the disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Examinations must be interpreted, and if necessary reconciled, into a consistent picture so that the rating is accurate. 38 C.F.R. § 4.2. A staged rating, where two or more ratings are assigned for different portions of the period on appeal, must be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).
If two ratings are applicable, the higher is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant, however. 38 C.F.R. § 4.3. The claimant thus prevails if the evidence supports an increased rating or is in relative equipoise, but does not prevail when the preponderance of the evidence is against an increased rating. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.
The Veteran's residuals of shell fragment wounds to the right knee has been rated under Diagnostic Code 5010-5314, while his injury to Muscle Group XVIII of the right knee has been rated under Diagnostic Code 5318. His residuals of shell fragment wounds to the right leg, as well as of the left leg, have been rated under Diagnostic Code 5312. The same residuals of the right thigh, left hip, and left buttocks respectively have been rated under Diagnostic Code 5314, 5252-5318, and 5317-7805. Finally, the Veteran's injury to Muscle Group XVI of the left hip has been rated under Diagnostic Code 5316. Hyphenated Diagnostic Codes signify that the rating for a disability is based upon the criteria for another disability. 38 C.F.R. § 4.27. The Diagnostic Code for the disability is before the hyphen. The Diagnostic Code for the other disability is after the hyphen. Id.
Diagnostic Codes 5312 through 5318 are contained in 38 C.F.R. § 4.73. This regulation, in conjunction with associated regulations, address muscle disabilities. Since the period on appeal began in April 1972, 38 C.F.R. § 4.73 has been amended several times. This includes in 1976, 1978, 1991, and, as mentioned in the Board's January 2013 remand, 1997. Associated 38 C.F.R. §§ 4.55 and 4.56 each were amended in 1978 and, as mentioned in the Board's March 2011 and January 2013 remands, 1997. Associated 38 C.F.R. § 4.54 was eliminated by the 1997 revision. The new version of a regulation can be applied only to the period beginning on the effective date of the revision. The old version can be applied even after this date if doing so is more favorable to the claimant. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overturning in part Karnas v. Derwinski, 1 Vet. App. 308 (1991)); VAOPGCPREC 7-03 (Nov. 19, 2003); VAOPGCPREC 3-00 (Apr. 10, 2000).
Prior to and after each of the aforementioned revisions, Diagnostic Code 5312 has pertained to muscle group XII. This group, comprising the anterior muscles of the leg, functions during dorsiflexion, extension of the toes, and stabilization of the arch. Diagnostic Code 5318 similarly always has pertained to muscle group XVIII, pelvic girdle group three, which function during outward rotation of the thigh and stabilization of the hip joint. Both always have called for the assignment of a 10 percent rating for a moderate disability, a 20 percent rating for a moderately severe disability, and the maximum 30 percent rating for a severe disability.
Diagnostic Code 5314 always has pertained to muscle group XIV, the anterior thigh group, which function during extension of the knee, simultaneous flexion of the hip and knee, tension of the fascia lata and iliotibial (Maissiat's) band acting with muscle group XVII in postural support of the body, and acting with the hamstrings in synchronizing the hip and the knee. Diagnostic Code 5316 always have pertained to muscle group XVI, pelvic girdle group one, which functions during flexion of the hip. Each always has called for the assignment of a 10 percent rating for a moderate disability, a 30 percent rating for a moderately severe disability, and the maximum 40 percent rating for a severe disability.
Finally, Diagnostic Code 5317 always has pertained to muscle group XVII, pelvis girdle group two, which functions during extension of the hip, abduction of the thigh, elevation of the opposite side of the pelvis, and tension of the fascia lata and iliotibial (Maissiat's) band acting with muscle group XIV in postural support of the body steadying the pelvis upon the head of the femur and condyles of the femur on the tibia. It always has called for the assignment of a noncompensable rating for a slight disability, a 20 percent rating for a moderate disability, a 40 percent rating for a moderately severe disability, and the maximum 50 percent rating for a severe disability. Special monthly compensation further is to be considered if there is a severe disability bilaterally. It is to be considered if there is loss of use of the buttocks bilaterally, in other words.
The cardinal signs and symptoms of a muscle disability were set forth in 38 C.F.R. § 4.54 prior to the 1997 revision and in 38 C.F.R. § 4.56 after that revision. They include loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Prior to and after the aforementioned revision, muscle disabilities were described by 38 C.F.R. § 4.56. A slight muscle disability always has existed if service treatment records show a simple wound. It would have required brief treatment but not debridement, would not have become infected, and would have healed with good functional results to include no cardinal signs and symptoms. The result would be minimal scarring, no impairment of function, and no retained metallic fragments. The result also would be slight to no evidence of fascial defect, atrophy, or impaired tonus prior to the revision and none after the revision.
A moderate muscle disability always has existed if service treatment records show a through and through or deep penetrating short track wound from a single bullet or a small shell or shrapnel fragment without the explosive effect of a high velocity missile. It would have required treatment, which prior to the 1997 revision would include hospitalization, but not debridement and would not have manifested a prolonged infection. There would be consistent complaint of one or more cardinal signs and symptoms. Fatigue and fatigue-pain after moderate use particularly were noted prior to the revision, while a lowered threshold of fatigue after average use was noted after the revision. The result both prior to and after the revision would be small or linear entrance and perhaps exit scars and impairment of muscle tonus. Prior to the revision, the result also would be moderate loss of deep fascia or muscle substance and definite weakness or fatigue on comparative testing. After the revision, the result also would be some deep fascia or muscle substance loss and loss of power or lowered threshold of fatigue when compared to the sound side.
Both prior to and after the 1997 revision, a moderately severe muscle disability existed if service treatment records show a through and through or deep penetrating wound from a small high velocity missile or large low velocity missile. It would have required prolonged hospitalization and required debridement, manifested prolonged infection, or manifested sloughing of soft parts. There also would be intermuscular cicatrization prior to the revision and intermuscular scarring after the revision. There additionally would be consistent complaint of cardinal signs and symptoms and perhaps an inability to keep up with work requirements. The result would be large entrance and perhaps exit scars, which prior to the revision would be large. The result also would be loss of deep fascia, muscle substance, or normal firm resistance of muscles compared to the sound side upon palpation, which prior to the revision would be moderate. Finally the result would be positive evidence of marked or moderately severe loss prior to the revision and of impairment after the revision upon comparative strength and endurance testing.
A severe muscle disability finally always has existed if service treatment records show a through and through or deep penetrating wound from a high velocity missile, a large low velocity missile, or multiple low velocity missiles or a shattering bone fracture. The wound also could be due to the explosive effect of a high velocity missile prior to the 1997 revision or to an open comminuted fracture after the 1997 revision. It would have required prolonged hospitalization and extensive debridement as well as manifested prolonged infection and sloughing of soft parts or intermuscular binding along with cicatrization prior to the revision but scarring after the revision. There would be the same complaints as for a moderately severe muscle disability, but they would be aggravated or worse.
The result of a severe muscle disability would be ragged, depressed, and adherent scars, which prior to the aforementioned revision would be extensive. The result, both prior to and after the revision, also would be loss of deep fascia, muscle substance, or soft flabby muscles upon palpation, abnormal muscle swelling and hardening in contraction, and severe impairment of function compared with the sound side upon tests of strength, endurance, and coordinated movements. Potential results further would include multiple minute scattered foreign bodies upon X-rays, scar adhesion to a pelvic or long bone with epithelial sealing rather than true skin over it in an area where there normally is muscle, diminished excitability when compared to the sound side upon electrodiagnostic testing, visible or measurable atrophy, adaptive contraction of an opposing group of muscles, atrophy of muscle groups not in the track of the missile, and induration or atrophy of an entire muscle following simple piercing by a projectile.
Prior to the 1997 revision, 38 C.F.R. § 4.55 provided that muscle disabilities in the same anatomical region such as the pelvic girdle and thigh will not be combined. The rating for the major group instead will be elevated from moderate to moderately severe or from moderately severe to severe according to the aggregate impairment of function of the applicable extremity. Two or more severe muscle disabilities affecting the motion (particularly strength of motion) about a single joint could be combined as long as the combined is not more than the rating for ankylosis of that joint at an intermediate angle. After the 1997 revision, 38 C.F.R. § 4.55 has provided that the combined rating for muscle disabilities acting upon a single unankylosed joint must be lower than the rating for unfavorable ankylosis of that joint. Compensable muscle disabilities in the same anatomical region but that do not act upon the same joint will be rated based on the worst disability. That rating will be increased by one level and used as the combined rating for the disabilities.
With one exception, none of the remaining applicable regulations have been revised during the period on appeal. 38 C.F.R. § 4.71a addresses musculoskeletal disabilities. Such a disability involves the inability to perform normal movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness. Id.; 38 C.F.R. § 4.59. It also always could be due to excess fatigability or incoordination. 38 C.F.R. § 4.45. An increased rating for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion. Id.; 38 C.F.R. §§ 4.40, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
Diagnostic Code 5010 pertains to traumatic arthritis. It calls for rating as degenerative arthritis, also known as osteoarthritis, under Diagnostic Code 5003. Establishment by X-ray evidence is required thereunder. Rating is based on limitation of motion under the appropriate Diagnostic Code(s). If that results in a noncompensable rating, a 10 percent rating for each major joint or group of minor joints affected by limitation of motion is assigned. Objective confirmation in this regard with findings such as swelling, muscle spasm, or painful motion is required. In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent rating. The same with occasional incapacitating exacerbations merits a 20 percent rating.
Regarding limitation of motion of the knee and leg, Diagnostic Code 5260 addresses flexion. Flexion to 45 degrees yields a 10 percent rating. A 20 percent rating requires flexion limited to 30 degrees. The maximum rating of 30 percent is for flexion limited to 15 degrees. Diagnostic Code 5261 addresses extension. Extension limited to 10 degrees is assigned a 10 percent rating. A 20 percent rating is for extension limited to 15 degrees, while a 30 percent rating is awarded for extension limited to 20 degrees. Extension limited to 30 degrees warrants a 40 percent rating. The maximum 50 percent rating is reserved for extension limited to 45 degrees. Normal range of motion is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II.
Several other Diagnostic Codes concern knee and leg disabilities. Diagnostic Code 5257 concerns other impairment of the knee. Slight recurrent subluxation or lateral instability merits a 10 percent rating. A 20 percent rating requires the same to a moderate degree, while the maximum 30 percent rating is reserved for the same to a severe degree. Diagnostic Codes 5259 and 5263 establish a 10 percent rating for symptomatic removal of the semilunar cartilage and genu recurvatum. A 20 rating is assigned under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A rating ranging between 10 to 40 percent is warranted for impairment of the tibia and fibula under Diagnostic Code 5262. Finally, a rating ranging between 30 and 60 percent is warranted for ankylosis of the knee under Diagnostic Code 5256.
Diagnostic Code 5252 addresses limitation of flexion of the hip. Flexion limited to 45 degrees merits a 10 percent rating. A 20 percent rating requires flexion limited to 30 degrees, while a 30 percent rating requires flexion limited to 20 degrees. The maximum rating of 40 percent is reserved for flexion limited to 10 degrees. Two other Diagnostic Codes concern motion. Diagnostic Code 5251 establishes a 10 percent rating for limitation of extension to five degrees. Impairment in the form of limitation of adduction, with the inability to cross legs, or rotation, with the inability to toe-out more than 15 degrees on the affected leg, merits a 10 percent rating under Diagnostic Code 5253. The maximum rating of 20 percent is reserved for limitation of abduction if motion is lost beyond 10 degrees. Normal range of motion is from zero degrees extension to 125 degrees flexion and from zero degrees adduction to 45 degrees abduction. 38 C.F.R. § 4.71, Plate II.
Additionally, several other Diagnostic Codes concern hip and thigh disabilities unrelated specifically to motion. Diagnostic Code 5255, for impairment of the femur, provides for a rating ranging between 10 and 80 percent. Hip flail joint, the subject of Diagnostic Code 5254, establishes a rating of 80 percent. A rating ranging between 60 and 90 percent for ankylosis of the hip finally is called for by Diagnostic Code 5250. In addition to this maximum rating, which is for unfavorable to extremely unfavorable ankylosis, special monthly compensation also is warranted.
Pyramiding, rating the same manifestation of a disability under different Diagnostic Codes, is prohibited. 38 C.F.R. § 4.14. Yet rating under more than one Diagnostic Code is warranted if there are separate and distinct manifestations. The critical requirement is that none of the symptomatology is overlapping. Esteban v. Brown, 6 Vet. App. 259 (1994). Separate ratings are assigned, for example, where there is limitation of flexion and of extension of the knee and leg. VAOPGCPREC 9-04 (Sept. 17, 2004). Second, separate ratings are assigned for degenerative arthritis or limitation of motion and for other impairment or cartilage dislocation or removal. VAOPGCPREC 09-98 (Aug. 14, 1998); VAOPGCPREC 23-97 (Jul. 1, 1997); Esteban, 6 Vet. App. at 259; Licthenfels v. Derwinski, 1 Vet. App. 484 (1991).
38 C.F.R. § 4.68 is otherwise known as the amputation rule. It states that the combined rating for disabilities of an extremity shall not exceed the rating for amputation at the elective level were amputation to be performed. Amputation at the middle or lower thirds of the thigh, of the leg with a defective stump and thigh amputation recommended, and of the leg with amputation not improvable by prosthesis controlled by natural knee action all merits a 60 percent rating under Diagnostic Codes 5162, 5163, and 5164 respectively. Amputation at the upper third, one-third of the distance from the perineum to the knee joint measured from the perineum, merits an 80 percent rating under Diagnostic Code 5161. Finally, Diagnostic Code 5160 for disarticulation with loss of extrinsic pelvis girdle muscles established a 90 percent rating.
Finally, 38 C.F.R. § 4.118 concerns skin disabilities. It contains Diagnostic Code 7805 as well as several other potentially applicable Diagnostic Codes. Since the period on appeal began in April 1972, 38 C.F.R. § 4.118 has been amended four times. This includes in 1975, 1978, and 2002. It also includes October 23, 2008, with a correcting amendment in 2012. The newest version applies only to claims filed on or after this date or if review under them is requested. It is reiterated that the Veteran filed his claim well before then. Neither he nor his representative has requested review pursuant to the newest version.
Diagnostic Code 7805 always has pertained to other scars. It always has called for rating to be based on limitation of function of the part affected. Prior to the 2002 revision, Diagnostic Codes 7801 and 7802 concerned burns. Diagnostic Codes 7803 and 7804 established a 10 percent rating for superficial scars that are poorly nourished with repeated ulceration and that are tender and painful on objective demonstration respectively. Superficial was not defined. It generally is defined as located near or lying on the surface and not penetrating below. Merriam-Webster 's Collegiate Dictionary, 1253 (11th ed. 2003).
After the 2002 revision, a rating ranging between 10 and 40 percent was warranted under Diagnostic Code 7801 for scars other than of the head, face, or neck that are deep or that cause limited motion. Diagnostic Code 7802 established a 10 percent rating for such scars that are superficial, do not cause limited motion, and are 144 square inches (929 square centimeters) or greater in area. The subject of Diagnostic Code 7803 was superficial scars that are unstable, while the subject of Diagnostic Code 7804 was superficial scars that are painful on examination. Both established a 10 percent rating. A deep scar was defined as one associated with underlying soft tissue damage. Diagnostic Code 7801, Note (2). A superficial scar was defined as one not associated with underlying soft tissue damage. Diagnostic Codes 7802-7803, Note (2); Diagnostic Code 7804, Note (1). An unstable scar was defined as one where, for any reason, there is frequent loss of covering of skin over the scar. Diagnostic Code 7803, Note (1).
The probative value of the evidence must be assessed. 38 C.F.R. § 4.6. Like with service connection, persuasive and unpersuasive evidence must be identified and reasons must be provided for rejecting evidence favorable to the claimant. Gabrielson, 7 Vet. App. at 36, Masors, 2 Vet. App. at 181; Wilson, 2 Vet. App. at 614; Hatlestad, 1 Vet. App. at 164; Gilbert, 1 Vet. App. at 49. That includes any lay evidence in addition to medical evidence. All the evidence once again must be reviewed, but only the most salient must be discussed. Gonzales, 218 F.3d at 1378.
With respect to the Muscle Group injuries, no increased initial rating is warranted. The currently assigned 30 percent initial rating for injury to Muscle Group XVIII of the right knee is the highest allowable under Diagnostic Code 5318. The currently assigned 40 percent initial rating for injury to Muscle Group XVI of the left hip similarly is the highest allowable under Diagnostic Code 5316. In other words, an increased initial rating is not possible. These initial ratings indeed signify that the presence of a severe disability already has been found as of August 20, 2010. It follows that no further discussion is necessary for this period as it pertains to the right knee and left hip.
With respect to all of the shell fragment wounds disabilities, no increased initial rating is warranted under Diagnostic Codes 5312, 5314, 5317, and 5318. The currently assigned noncompensable initial rating for the left buttocks as well as the currently assigned 10 percent initial ratings for the right leg, right thigh, left leg, and left hip are appropriate because the criteria for even the next highest rating have not been and are not more nearly approximated. The same is true for the right knee both prior to January 17, 2006, the period for which the currently assigned initial rating is 10 percent, and from this date to present, the period for which the currently assigned initial rating is 20 percent. There indeed is no indication that the disability of the left buttocks ever has been moderate, that the disability of the right leg, right thigh, left leg, and left hip ever has been severe, or that the disability of the right knee was moderate before January 17, 2006, or severe thereafter.
Of note at the outset is that the 1997 revision made relatively minor changes to the descriptions of muscle disabilities as slight, moderate, moderately severe, and severe in 38 C.F.R. § 4.56. It accordingly is not necessary to discuss separately whether an increased initial rating is warranted prior to and after the revision. The same findings indeed are made for both periods. Available service treatment records document that the Veteran was wounded by shrapnel in late July 1968. Yet there was no through and through or deep penetrating short track wound, regardless of the source, anywhere. Treatment on a hospital ship was required as a result of the Veteran's wounds. He was hospitalized until late August 1968, which equates to about a month, before returning to duty. No mention was made of any debridement, infection sloughing of soft parts, or intermuscular cicatrization, scarring, or binding. Some of this was confirmed at one or more post-service VA medical examinations.
No complaints of any cardinal sign or symptom were made by the Veteran regarding his left buttocks, right leg, right thigh, left leg, or right knee during service. He indeed stated in October 1968, just two months after being wounded, that only his left hip was giving him "a little problem." That problem, pain, is a cardinal sign and symptom. However, the Veteran had well-healed scars of the left hip and everywhere else. None were characterized as exit scars. X-rays did show that he had retained a small piece of shrapnel in the left hip. Yet there was no muscular weakness, and he was coordinated enough that his gait was normal. He was deemed minimally symptomatic. No further complaints of any left hip cardinal sign or symptom were made by the Veteran, so his complaints were not consistent. At his November 1969 separation examination, nothing was noted other than his scars. His lower extremities were normal.
Immediately following his service, the Veteran continued to be largely unaffected by his wounds. May 1970 VA treatment records reflect that he complained only of cramps, which is not a cardinal sign or symptom. He first complained of constant pain with on location specified, for which he stated he sought treatment so often he lost a job, in his April 1972 original claim. X-rays showed that the Veteran retained, in addition to the left hip metallic fragment, one small metallic fragment in his right thigh and his right leg, two small metallic fragments in his left lower leg, and several small metallic fragments in his right knee. His hamstrings were tight in May 1970. Yet there was no motor deficiency or other major damage. He was placed on leave from work for four weeks not due to his wounds but due to a spinal problem. The Veteran's wounds were described as moderately symptomatic at an August 1972 VA medical examination. There was no muscle weakness, however.
The Veteran's primary complaint thereafter has been left hip and right knee pain. This includes during the period from 1972 until 2004. The September 2013 retrospective VA medical opinion concerned only this period. However, it essentially was determined that no opinion could be provided due to the lack of available information. Treatment records indeed are scant. There is only one. A May 1977 VA treatment record reflects that the Veteran made the aforementioned complaint. No muscle problem was detected. No VA medical examinations were conducted. Otherwise, the Veteran repeated a complaint of cramps at a July 1982 entrance examination for reserve service. His lower extremities were normal. The only possible conclusion thus is that he remained largely unaffected by his wounds through 2003.
Beginning in 2004, the Veteran added pain in his right thigh, right and left legs, and left buttocks to his complaints of left hip and right knee pain. His wife A.B. confirmed his left hip and right knee pain in an October 2004 statement. He also added left hip and right knee weakness and stiffness. Finally, he renewed his complaint of cramping and raised complaints of decreased coordination and speed of movement as well as uncertainty of movement. X-rays continued to show retained metallic fragments. Nevertheless, a February 2004 VA treatment record indicates that the Veteran's motor function was grossly intact. His coordination was adequate and his gait was normal. His right knee was considered only mildly disabling at the June 2004 VA medical examination. Muscle mass on the right and left was symmetrical, and he had a stable though limping gait. At the March 2006 VA medical examination, the Veteran's muscle strength was adequate. It was normal at the January 2007 VA medical examination.
A May 2007 VA treatment record similarly shows normal strength and gait. In an October 2008 VA treatment record, decreased strength on the right as compared to the left is referenced. Yet there were decreases on both sides such that the difference was only one point on a five point scale. This decrease further was only in the right quad and hamstring. The Veteran's gait was antalgic then and at the July 2009 VA medical examinations. However, there was no loss of fascia or muscle substance. There also was no intermuscular scarring. Such being detected in the left hip at the December 2009 VA medical examination therefore is contradictory. Not only does it contradict the July 2009 examinations, it also contradicts the other examinations which did not note any intermuscular scarring. This finding accordingly is not persuasive.
Otherwise, the Veteran had a heavy limp at the October 2010 VA medical examination. No muscle problem of the right leg, right thigh, left leg, or left buttocks was mentioned then or at October 2010, March 2011, or July 2012 VA medical examinations. Assessment of the right knee and left hip from all of these examinations cannot be considered in light of the Muscle Group injuries. These injuries have been in effect since the date of this first examination, which was performed on the 20th. Ratings for them encompassed all muscle problems. To considered such problems again in rating the shell fragment wounds disabilities of the right knee and let hip would made that the same manifestations would be used to assign ratings under different Diagnostic Codes. Such pyramiding is prohibited. Non-muscle problems encompassed by other Diagnostic Codes related to the right knee and left hip will be considered below for the entirety of the period on appeal. This includes prior to August 20, 2010, and from that date.
The only shell fragment wounds disabilities in the same anatomical region are those of the left hip and left buttocks and those of the right knee and right thigh. Prior to the 1997 revision, a combined rating for the left hip and buttocks and for the right knee and thigh must be assigned rather than the currently assigned separate ratings. The major groups, or those more severely impacted as evinced by the currently assigned separate ratings, are the left hip group with a 10 percent rating over the left buttocks group with a noncompesnable rating and a toss-up between the right knee and right thigh groups each rated at 10 percent. Elevation from moderate to moderately severe for the left hip group, once considered together with the left buttocks, therefore is warranted. Under Diagnostic Code 5318, which has been used to rate the left hip, moderately severe receives a 20 percent rating. Elevation from moderate to moderately severe for either when considered together merits a 30 percent rating under Diagnostic Code 5314, which has been used to rate both.
Initial increased ratings of 20 percent for the left hip and buttocks together and of 30 percent rating for the right knee and thigh together accordingly are warranted pursuant to 38 C.F.R. § 4.55 prior to the 1997 revision. Staging the rating around January 17, 2006, therefore is eliminated. The same result is obtained for the right knee and thigh together after the 1997 revision. Indeed, both of these shell fragment wounds disabilities are compensable. They do not act upon the same joint since both the function and the hip are implicated by Diagnostic Code 5314. A one level increased from moderate to moderately severe, or from 10 to 30 percent, thus is called for. Concerning the left hip and buttocks, the function only of the hip is implicated by Diagnostic Codes 5317 and 5318. Rating these shell fragment wounds disabilities together and elevating by one level is not directed. The 10 percent and noncompensable ratings stands, but the result prior to the revision applies even to the period thereafter because it is more favorable to the Veteran.
Regarding 38 C.F.R. § 4.68, there is no violation. Initial ratings of 10 percent for the left leg and right leg shell fragment wounds disabilities are upheld herein-as are the initial 30 and 40 percent respective ratings for the Muscle Group injuries of the right knee and left hip as of August 20, 2010. The 30 percent initial rating for the right knee and right thigh shell fragment wounds disabilities together and the newly granted 20 percent initial rating for the left hip and left buttocks shell fragment wounds disabilities together are newly granted. When the injuries and disabilities all are considered, the combined rounded rating for the left leg is 30 percent prior to August 20, 2010, and 60 percent from that date. 38 C.F.R. § 4.25. The combined rounded rating for the right leg is 40 percent prior to August 20, 2010, and 60 percent from that date. Id. The combined rating for all the disabilities of each leg never exceeds the minimum 60 rating that would be assigned if amputation were performed at or above the knee.
All that remains for consideration are the Diagnostic Codes for musculoskeletal disabilities, as they relate to the right knee and left hip, and skin disabilities concerning the left buttocks. No increased initial rating is warranted thereunder for the right knee. The newly granted 30 percent initial rating for the right knee and right thigh together is most favorable to the Veteran. An increased initial rating is warranted for the left hip for a portion of the period on appeal. The newly granted 20 percent initial rating for the left hip and left buttocks together indeed is most favorable to the Veteran only for the period prior to July 13, 2009.
The highest rating allowable under Diagnostic Code 5010 via 5003 for the right knee is 10 percent. This is true regardless of the evidence, both on X-ray and otherwise, because 38 C.F.R. § 4.45 notes that the knee is a major joint. This has been true throughout the period on appeal. With respect to Diagnostic Code 5260, the newly assigned 30 percent rating encompassing the right knee is the same as the maximum rating allowable. Flexion, in any event, was most limited at the July 2012 VA medical examinations when it was only to 60 degrees upon repetition. This equates to a noncompensable rating. There is no indication of extension limited to 30 degrees, the criteria for the next highest rating of 40 percent under Diagnostic Code 5261. When present, the amount of loss has been far less substantial. Sometimes there has been no loss.
Specifically, there was no loss of motion whatsoever at the August 1972 VA medical examination. Extension in the Veteran's right knee was full at the June 2004 VA medical examination. It initially was full and upon repetition had a loss of five degrees at the March 2006 VA medical examination, and was full initially and upon repetition at the January 2007 VA medical examination. An October 2008 VA treatment record also shows full extension, as do the July 2009 VA medical examinations both initially and upon repetition. At the August 2010 VA medical examination, there was a 10 degree loss of extension initially and a 15 degree loss upon repetition. A similar respective five and seven degree loss was present at the March 2011 VA medical examination. At the July 2012 VA medical examinations, there finally was up to a 10 degree loss initially and upon repetition. The maximum rating, in sum, that could be awarded is 20 percent given the one occasion of 15 degrees of extension loss upon repetition.
Pain often has been present during some or all of the Veteran's right knee range of motion. This includes initially and upon repetition. However, painful motion does not constitute limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The same goes for any weakness, incoordination, excess fatigability, or lack of endurance impacting this range initially or upon repetition. Flare-ups often have been reported by the Veteran. Yet nothing he reports suggests that his extension becomes so limited that he reaches a loss of at least 30 degrees during flare-ups. The closest he comes is at the January 2007 VA medical examination, where he indicated he has a 60 to 80 percent limitation of function during a flare-up. It cannot be inferred without more that he was referring to truly limited motion rather than simply painful motion or something else entirely. Otherwise, there is no determination whether based upon an assessment or in the form of an opinion that there is at least a 30 degree loss of extension during flare-ups.
The newly assigned 30 percent rating is the same as the maximum rating allowable under Diagnostic Code 5257. A separate rating is not warranted. The Veteran has reported symptoms like giving way suggestive of right knee instability or subluxation. He is competent to do so, as he is to report all his other symptoms (and as A.B. was), because such is within his personal experience (for A.B., the symptoms were capable of her observation). Layno v. Brown, 6 Vet. App. 465 (1994). He additionally is credible despite his interest in potential financial gain because no significant reason for doubt such as implausibility or inconsistency exists. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). While the Veteran's reports are persuasive, the VA treatment records and VA medical examinations are much more persuasive. They involved assessment designed to detect instability regardless of the whether or not there are relevant symptoms. It has not been present. Rather, it has been absent.
Lastly, use of Diagnostic Codes 5257, 5258, 5259, 5262, and 5263 is to no avail. The maximum rating allowable under Diagnostic Codes 5259 and 5263 is 10 percent, while the maximum under Diagnostic Code 5258 is 20 percent. Mention, in any event, has not been made of genu recurvatum. Mention also has not been made of any cartilage or meniscal problem, whether before or after the Veteran's surgery in May 2006. Separate ratings therefore are not warranted. Ratings higher than the newly assigned 30 percent rating are possible under Diagnostic Codes 5256 and 5263. However, neither VA treatment records nor the VA medical examinations reveal that ankylosis or impairment of the tibia and fibula has been detected. They instead reveal the opposite.
There is no indication of flexion limited to 20 degrees, the criteria for the next highest rating of 30 percent under Diagnostic Code 5252, for the left hip. It is reiterated that there was no loss of motion whatsoever at the August 1972 VA medical examination. Flexion in the Veteran's left hip initially was to 124 degrees and upon repetition was to 119 degrees at the March 2006 VA medical examination. It was to 110 degrees initially and upon repetition at the January 2007 VA medical examination, while it was to 40 degrees initially and to 25 degrees upon repetition at the July 2009 VA medical examinations. At the August 2010 VA medical examination, there was flexion to 30 degrees initially and upon one repetition. It was to 58 degrees initially and upon one repetition at the October 2010 VA medical examination. At the July 2012 VA medical examinations, there finally was flexion to 55 degrees initially. The Veteran was unable to undergo repetition. The maximum rating, in sum, warranted is 20 percent for flexion limited to 30 but not quite 20 degrees. This was not always the case, but it was not an anomaly either given that such existed on two occasions.
Concerning pain during left hip range motion, the same discussion as for the Veteran's right knee generally applies. This is true even though the pain, unlike for his right knee, has been so significant as to preclude repetition more than once on two other occasions. Pain precluded any repetition on one occasion. Yet this cannot be equated with limited motion. It indeed is difficult to fathom that the Veteran initially had 55 degrees of motion once albeit with pain but could not flex his left hip at all a second time due to pain. He rather appears to have chosen not to move undergo this motion a second time so as to avoid the pain it would produce. Some amount of hip flexion is required for basic maneuverability. The Veteran was not deemed deficient in this regard. An assistive device for walking was not noted. Further, the left knee was implicated in the failure to undergo repetition. With respect to flare-ups, the same discussion as for the right knee also applies. Indeed, the Veteran reported the same functional limitations for his right knee and left hip at the January 2007 VA medical examination. No determinations otherwise have been made to the effect that flexion is limited to 20 degrees during flare-ups.
The maximum rating allowable under Diagnostic Code 5261 is 10 percent. A separate rating of 10 percent is warranted thereunder, though not for the entire period on appeal, however. Extension of the Veteran's left hip was not limited to five degrees or less whether initially or upon repetition, is such was performed, at the August 1972, March 2006, and January 2007 VA medical examinations. It was not measured at the August 2010 VA medical examination. While there was 35 degrees of extension both initially at the March 2011 VA medical examination, there was none upon repetition. This corresponds to the Veteran having no extension both initially and upon repetition, regardless of how many were performed, at the July 2009 and October 2010 VA medical examinations. It also corresponds to there being only five degrees of extension initially, with no repetitions undertaken, at the July 2010 VA medical examinations.
The newly assigned 20 percent rating encompassing the left hip is the same as the maximum rating allowable under Diagnostic Code 5253. A separate rating is once again is warranted thereunder, but not for the entire period on appeal. The Veteran's abduction was not lost beyond 10 degrees, his adduction was such that he could cross his legs, and his rotation was such that he could toe-out more than 15 degrees both initially and repeatedly, if repetition was performed, at the August 1972, March 2006, and January 2007 VA medical examinations. There was 28 degrees abduction, 14 degrees adduction, 64 degrees external rotation, and 34 degrees internal rotation initially and upon one repetition at the October 2010 VA medical examination. At the March 2011 VA medical examination, abduction and adduction were not measured. The Veteran external rotation was to 25 degrees while his internal rotation was to 10 degrees initially, with a decrease only externally to 20 degrees upon repetition.
At the July 2009 VA medical examinations, the Veteran's abduction was only to 10 degrees initially and to seven degrees upon repetition. His adduction was such that he could not cross his legs, and his rotation was such that he could not toe-out greater than 15 degrees. At the August 2010 VA medical examination, the Veteran's lateral flexion was to 30 degrees and he could rotate externally to 20 degrees initially and upon one repetition. He also could cross his legs (it is clear that, although the word unable is used, the word able was intended). However, he could only rotate internally to 15 degrees as opposed to more than that. Abduction was lost beyond 10 degrees initially at the July 2012 VA medical examinations. The Veteran's adduction was such that he could not cross his legs, and his rotation was such that he could not toe-out more than 15 degrees. Repetition was not undertaken.
A separate 10 percent rating under Diagnostic Code 5251, in sum, is warranted beginning as of July 13, 2009, the date of the examination that month. Indeed, the criteria for this rating first are ascertainable at that examination. A separate rating of 20 percent is warranted beginning July 13, 2009, under Diagnostic Code 5253 based on abduction for the same reason. Even though the criteria for this rating pursuant thereto were not ascertainable at the 2010 or 2011 VA medical examinations, they were anew at the July 2012 VA medical examinations. The criteria for a 10 percent rating based on adduction and rotation further were ascertainable at the August 2010 VA medical examination. Complete consistency with respect to the criteria for the 20 percent does not exist, but there is consistency with respect to the criteria for at least a 10 percent rating with the exception of the October 2010 VA medical examination. There is some reasonable doubt about the degree of disability, in other words. It accordingly is resolved in the Veteran's favor.
The aforementioned separate ratings join the 20 percent rating assignable under Diagnostic Code 5252, which also is factually ascertainable as of the July 13, 2009, VA medical examination. As such, the combined rounded rating is 40 percent as of this date. 38 C.F.R. § 4.25. This is higher than the newly assigned 20 percent rating based on the muscle disabilities Diagnostic Codes, but only as of the aforementioned date. The new 20 percent rating for the left hip and left buttocks together assigned herein on the basis of the muscle disabilities Diagnostic Codes thus stands prior to July 13, 2009. It is replaced in favor of a 40 percent rating, also newly assigned herein, on the basis of limitation of motion as of this date.
Lastly, use of Diagnostic Codes 5250, 5254, and 5255 is to no avail. Ratings higher than 40 percent are allowable under each Diagnostic Code. Yet neither VA treatment records nor the VA medical examinations reveal that ankylosis, flail joint, or impairment of the femur has been detected. They instead reveal the opposite. Use of Diagnostic Codes 7803 through 7805 prior to the 2002 revision and Diagnostic Codes 7801 through 7805 after the 2002 revision regarding the left buttocks similarly is to no avail. Neither VA treatment records nor the VA medical examinations described any scar to the left buttocks distinct from the scar or scars located on the left hip. It would be pyramiding to considered these hip scars again, at least with respect to the period from January 17, 2006, as they already have been service-connected and taken into account in assigning an unappealed 10 percent initial rating.
Consideration has been given to reasonable doubt and the assignment of a staged rating in making the above determinations. The preponderance of the evidence otherwise is against the assignment of initial ratings higher than 30 percent for injury to Muscle Group XVIII of the right knee and higher than 40 percent for injury to Muscle Group XVI of the left hip for the entire period beginning August 20, 1010. The same is true for initial ratings higher than 10 percent for residuals of shell fragment wounds to both the right leg and the left leg for the entire period on appeal. For the residuals of shells fragment wounds of the right knee and right thigh together, the preponderance of the evidence is for an initial rating of 30 percent for the entire period on appeal. It follows that there is no reasonable doubt to resolve in the Veteran's favor and that a staged rating is not warranted regarding the aforementioned disabilities. With respect to residuals of shell fragments wounds to the left hip and left buttocks together, the preponderance of the evidence is for a 20 percent initial rating for the period prior to July 13, 2009. Reasonable doubt was resolved in assigning a 40 percent rating as of this date, as discussed above. There accordingly is one stage involved, but no others are warranted.
B. Extraschedular
As an alternative to assigning a rating under the Rating Schedule, one may be assigned on an extraschedular basis. 38 C.F.R. § 3.321(b). A three step process governs the assignment of extraschedular ratings. Thun v. Peake, 22 Vet. App. 111 (2008). First, it must be determined that the evidence presents such an unusual or exceptional picture that the schedular rating criteria are inadequate to contemplate the level of disability and symptomatology. It second must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating.
Neither the Veteran nor his representative has argued for an extraschedular initial rating. The Board finds that none of his disabilities are unusual or exceptional because the schedular rating criteria set forth above reasonably describe them. These criteria contemplate his symptoms adequately, in other words. They assign ratings based on the severity of muscle impairment, the severity of limited motion factoring in a wide variety of ways in which functional loss may be manifested, and other knee and hip problems. As such, they specifically account for the Veteran's lower extremity decreased strength, his gait disturbance, and his restricted motion in the right knee and left hip. They also specifically account for his resultant inability to exercise or engage in sports, his inability to walk, stand, or sit for prolonged periods, and his difficulty with or inability to engage in other activities such as lifting, carrying, dancing, hunting, and riding plus caring for his horses. These results have been competently and credibly reported by the Veteran and A.B. as well as noted in VA treatment records and at VA medical examinations.
Referral for consideration of the assignment of an extraschedular rating is not warranted due to the aforementioned. Discussion of whether there are related factors such as marked interference with employment, as opposed to typical interference encompassed in the schedular rating criteria, or frequent periods of hospitalization thus is unnecessary. Even if an unusual or exceptional disability picture had been found, however, referral still would not be warranted because these factors do not exist. Johnson v. Shinseki, 26 Vet. App. 237 (2013). Indeed, there is no indication that the Veteran ever, much less frequently, has been hospitalized due to his disabilities. His right knee surgery was in a hospital, but it was an outpatient procedure. There also is no marked interference with employment. He quit working in October 2009. Except for just prior thereto, there is no indication that the Veteran missed a lot of time from work due to his disabilities. These disabilities further have been noted to impact his ability to work at some of the VA medical examinations. Yet these impacts all concern maneuverability. In other words, they may require that the Veteran take more time or obtain help to complete tasks but may not require that he be assigned new tasks.
C. Total Disability Rating Based on Individual Unemployability (TDIU)
Total disability means that there is present any impairment of mind or body that renders it impossible to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. When an increased initial rating is sought, entitlement to a TDIU due to the disability at issue must be considered if expressly raised by the Veteran or reasonably raised by the evidence. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A TDIU may be assigned only where the schedular rating is less than total. 38 C.F.R. § 4.16(a).
Before this decision, the Veteran had a 100 percent combined rating for all of his service-connected disabilities as of August 20, 2010. He now has a 100 percent combined rating even earlier in light of this decision. 38 C.F.R. § 4.25. He indeed at least has it as of October 2009 when he quit working. It follows that a TDIU cannot be awarded as of then or any earlier date a 100 percent combined rating became effective. For the period prior thereto, neither the Veteran nor his representative has contended that his residuals of shell fragment wounds and Muscle Group injuries were so severe that he was unable to either secure or maintain work. This cannot be true because he competently and credibly reported working consistently. He indeed had a few jobs that were physical in nature involving carpentry and maintenance mechanics. A TDIU is not warranted.
ORDER
Service connection for hypertension, to include as secondary to a service-connected disability, is denied.
An initial rating of 30 percent (38 C.F.R. § 4.55) for residuals of shell fragment wounds to the right knee and right thigh together is granted, subject to the laws and regulations governing monetary awards.
An initial rating in excess of 30 percent for injury to Muscle Group XVIII of the right knee is denied.
An initial rating in excess of 10 percent for residuals of shell fragment wounds to the right leg is denied.
An initial rating in excess of 10 percent for residuals of shell fragment wounds to the left leg is denied.
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An initial rating of 20 percent (38 C.F.R. § 4.55) for the period prior to July 13, 2009, for the period from July 13, 2009, for residuals of shell fragment wounds to the left hip and left buttocks together is granted, subject to the laws and regulations governing monetary awards. From July 13, 2009, separate initial ratings of 20 percent (Diagnostic Code 5252 of 38 C.F.R. § 4.71a), 20 percent (Diagnostic Code 5253), and 10 percent (Diagnostic Code 5251) for the left hip are granted, subject to the laws and regulations governing monetary awards.
An initial rating in excess of 40 percent for injury to Muscle Group XVI of the left hip is denied.
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THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs